30 June 2011

Just a wee post to draw your attention to this edition of BBC Radio 4's, Law in Action. In this week's edition, first broadcast on the 28th of June, a half hour is spent discussing Scotland's distinctive legal system. Presented by the English legal journalist Joshua Rozenberg (and, as I lately discovered, spouse to Melanie Phillips), the programme ranges widely across various topics of recent legal interest for Scots, including the UK Supreme Court ruling in Her Majesty's Advocate v. Cadder, the outstanding insurers' appeal against Holyrood's Act pleural plaques before the same Court - and our procedural idiosyncrasies, including the not proven verdict, majority jury verdicts, and the requirement for corroboration. Rozenberg talks to a number of weel-kent Scots legal figures, including the University of Edinburgh's Professor Hector MacQueen, the fantooshly-face-furnitured Donald Findlay QC and Lord Carloway, who is presently reviewing Scots Law in the light of Cadder. The Scottish Government have given Carloway the following Terms of Reference:

(a) To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;

(b) To consider the implications of the recent decisions, in particular the legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime.

(c) To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect's right to silence;

(d) To consider the extent to which issues raised during the passage of the Criminal Procedures (Legal Assistance, Detention and Appeals)(Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement; and

(e) To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.

Carloway's review continues. Rozenberg also discusses an issue exercising Holyrood this morning - and which appeared on this blog earlier this week - the role of the UK Supreme Court in Scottish criminal appeals. The programme doesn't go into any depth on any of these topics - its pace is breakneck and its analysis air-light - but it is always pleasing, even in a brisk half-hour BBC programme, to see Scotland's distinctive legal system recognised and discussed.

29 June 2011

A peaty crony recently sent me an account of a conversation overheard in a bar in the Southside of Glasgow. The characters are a group of men in middle-to-late middle age. They are smartly dressed, prosperous, with a taste for the finer things in life. Natty watches hang from their joints and swanky shoes are an immediate concern. Sipping a second or third drink, they pass around plates of salade niçoise and moules marinières, discuss the architecture of British cathedrals - when their discussion noisily turns to the working classes. Despite their snobberies and their habits of consumption, none of the speakers show any remote sense of restraint discussing this topic. Their discussion isn't abashed with bourgeois fumblings and they do not envisage working class fellow-citizens as external observers might. Despite their objective circumstances, and tastes, and manners, and expenditures - each of these men feels themselves to be, at bottom, working class characters.

During May's Holyrood election campaign, I analysed the SNP's party political broadcast with reference to this curious (and often Labour-voting) archetype, which I contended was very accurately depicted by the broadcast's skeptical protagonist, played by Jimmy Chisholm. A number of you found the lineaments of this character recognisable. Last week, I noted but didn't really delve into the class-based data, generated by Professor James Mitchell et al in the Scottish Election Study 2011. One of the profoundly interesting aspects of the data as generated - positively inviting speculation - is its inclusion of subjective class-identifiers and a contrasting "objective" class identifier, which is to say, a consistent standard applied across the Study sample, based on the occupation of the head of household. These numbers are preliminary, borrowed from slides in which the researchers involved in the Study have presented their findings. Some important points of detail are absent - but this is a blog, not a peer-reviewed social scientific labour, so I don't have to feel too embarrassed about speculation and best-guesses.

Firstly, the middle classes. I have written before about some of the curiosities which surround the Scotch bourgeois. They are often conceived as Anglicised - and by dint of that, of attenuated Scottishness - the burdens of national representation being devolved onto the working classes, often dominated by urban, west coast sounds and images. Although I have not enlarged on the proposition before here, one of the most irritating manifestations of this tendency is Scottish theatre. All too often, I have sat in middle class audiences, watching middle class actors perform material composed by middle class authors - cheerfully playing out yet another plucky-working-class-touchstone-of-authenticity type tale, without any sense of embarrassment. It is a complex issue, which I'm conscious that I'm only touching on here. I am certainly not attempting to make the case for banishing such material for our stages, nor indeed denying that such parliamo Glasgow offerings are without their charms. It is just the almost hegemonic status of such dramatic material and the delusions it fosters that I find problematic. The crucial point is the tied presence and absence of the Scottish bourgeoisie. To paraphase (I think) Christopher Whyte or Cairns Craig, it conspires at its own invisibility.

There is also a curious gendered aspect of this. All credit to Gerry Hassan, one of the few folk in our public life to try to talk about Scottish masculinities. Gerry has contended that men are everywhere and nowhere - and that too often, we lack a vocabulary, range of images and narratives about what it means to be a Scottish man. The same point can be made, forcibly, about Scottish bourgeois masculinities, which are doubly silenced, both on the gendered and classed register. I've made the point previously, in a closer look at some elements of the small body of gender research we have, which engages with Scotland. As some of you may know, for the time being, I live in Oxford. I am always surprised when folk tell me that the town is "very English", struck by the contrast with Edinburgh. Both places are strongly associated with their respective institutions of learning, representations of them overwhelmingly defined by their bourgeois citizens (in the case of the latter, prompting Irvine Welsh's strong dislocating reaction, in Trainspotting) . In English terms, Oxford is also very much part of the South - which are least suggests questions about who dominates representations of Englishness, who can claim to encapsulate its authentic qualities? While Oxford is able to assume such a national mantle without much difficulty, Edinburgh continues to be problematic. Pleasingly paradoxically, the Scottishness of the Scots capital is at best suspect - and has been for some time. This is just a hastily composed gallimaufry - but I think begins to suggest some of the interest of thinking in a more nuanced way about the commonplace understandings of social class - and what is inexpressible or difficult to express, expelled from our public discourses by embarrassment or long neglect.

While the terse quantitative data of the Scottish Election Survey has limited explanatory potential in such a complex field - its findings are not without their impressionistic interest. Firstly, look at the data on subjective identification as middle class....

Respondents subjectively identifying as middle class...

SNP ~ 37%

Labour ~ 16%

Tories ~ 22%

Liberals ~ 8%

Greens ~ 9%

Others ~ 8%

And according to social grading's objective criteria...

AB voters (upper middle & middle classes)...

SNP ~ 41%

Labour ~ 25%

Tories ~ 14%

Liberals ~ 5%

Greens ~ 8%

Others ~ 7%

And...

C1 voters (lower middle classes)

SNP ~ 41%

Labour ~ 25%

Tories ~ 17%

Liberals ~ 8%

Greens ~ 6%

Others ~ 3%

Professor Mitchell's slides do not record the brute number of people we are talking about here - so it is impossible at this point to see whether subjective identifications as middle class are significantly smaller than those identified as such by "objective" social grading criteria. I suspect so. It is the discrepancies which strike me as particularly interesting. For example, amongst AB and C1 respondents, the Conservative vote is 14% and 17% respectively - but amongst those who subjectively identify as middle class, it runs between 5% and 8% higher at 22%. Although it would be important to look at how many folk we are actually talking about - these findings might suggest an interesting correlation between self-identifying as middle class and voting Tory. Certainly, in anecdotal form, I know a number of folk who recount the idea that certain people of their acquaintance started voting Tory, as a signifier of their conceit of themselves and place in the world. Further to the characters with which this blogpost opened, it is equally interesting to note that Labour support ran at 25% amongst AB and C1 voters - but only 16% of those subjectively identifying as bourgeois voted Labour. Again, we have to be careful here*. The SES data, as presently presented, doesn't allow us easily to compare across subjective and objective categories. We don't know the actual numbers of respondents in each group, so at the moment, we cannot tell for sure (but can guess) how far the objective and subjective class categories overlap. However, the fact that there is a 9% difference between objective classification as middle class, and subjective identification as middle class amongst Labour voters, might well suggest that a significant number of them either believe themselves to be working class, or abstain from a class-based analysis altogether. We'd have to see the figures and not just the percentages, to be sure. As those who read my post the other day will have seen, the working class data (subjective and objective) breaks down as follows...

Respondents subjectively identifying as working class...

SNP ~ 47%

Labour ~ 33%

Tories ~ 7%

Liberals ~ 4%

Greens ~ 3%

Others ~ 6%

C2DE voters (working classes)...

SNP ~ 47%

Labour ~ 28%

Tories ~ 9%

Liberals ~ 4%

Greens ~ 4%

Others ~ 8%

Again, we don't have numbers of respondents - only percentages - but a few interesting points can be picked up. Firstly, while the SNP vote is stable across subjective and objective categories - the Labour vote decreases by a not insignificant 5% when one moves into the objective register. Bluntly, 5% of the Labour vote conceives of itself as working class, but isn't according to occupational criteria. Interestingly, despite protestations to the contrary, the Greenies are attracting only tiny percentages amongst working class respondents, whether subjectively or objectively defined. Finally, and in some respects, perhaps most interestingly, are the results under the third subjective class category - those who do not identify with any class at all. The data is striking:

Respondents subjectively identifying as having no class...

SNP ~ 53%

Labour ~ 17%

Tories ~ 14%

Liberals ~ 4%

Greens ~ 4%

Others ~ 8%

A truly walloping lead for the Nationalists, 36% ahead of their nearest Labour rivals. There is a fascinating ideological aspect to this. One aspect of Scottish Nationalism - and indeed nationalism as such - which has historically concerned (some) socialists and communists, is its capacity to leech energy from the class struggle. In place of a united working class, contending against the rapacious bourgeoisie, you have nationalist division between English and Welsh and Scottish workers, whose energies are dispersed rather than united by a nationalist politics. I don't share the view - but I know a number of folk who would still hold to and proselytise for it. Unlike the social grading data and the subjective identifiers, we are unable at this point to set subjectivity beside objective criteria, and see how else we might categorise these "classless" respondent, and where in the brute boxes of ABC1 and C2DE most of them might fit - or how they are distributed across social grades. This is a pity, but it does pose a few pungent questions. First and foremost, what are the characteristics of these "classless voters"? Given how problematic middle-class identities can be in Scotland - indeed as I remember, David McCrone once suggested that there is a strong version of Scottish nationalism, which sees class as a wholly alien and English fixation - what does the SNP's majority amongst respondents of this character suggest about N(/n)ationalism's appeal?

A peaty crony recently sent me an account of a conversation overheard in a bar in the Southside of Glasgow. The characters are a group of men in middle-to-late middle age. They are smartly dressed, prosperous, with a taste for the finer things in life. Natty watches hang from their joints and swanky shoes are an immediate concern. Sipping a second or third drink, they pass around plates of salade niçoise and moules marinières, discuss the architecture of British cathedrals - when their discussion noisily turns to the working classes. Despite their snobberies and their habits of consumption, none of the speakers show any remote sense of restraint discussing this topic. Their discussion isn't abashed with bourgeois fumblings and they do not envisage working class fellow-citizens as external observers might. Despite their objective circumstances, and tastes, and manners, and expenditures - each of these men feels themselves to be, at bottom, working class characters.

During May's Holyrood election campaign, I analysed the SNP's party political broadcast with reference to this curious (and often Labour-voting) archetype, which I contended was very accurately depicted by the broadcast's skeptical protagonist, played by Jimmy Chisholm. A number of you found the lineaments of this character recognisable. Last week, I noted but didn't really delve into the class-based data, generated by Professor James Mitchell et al in the Scottish Election Study 2011. One of the profoundly interesting aspects of the data as generated - positively inviting speculation - is its inclusion of subjective class-identifiers and a contrasting "objective" class identifier, which is to say, a consistent standard applied across the Study sample, based on the occupation of the head of household. These numbers are preliminary, borrowed from slides in which the researchers involved in the Study have presented their findings. Some important points of detail are absent - but this is a blog, not a peer-reviewed social scientific labour, so I don't have to feel too embarrassed about speculation and best-guesses.

Firstly, the middle classes. I have written before about some of the curiosities which surround the Scotch bourgeois. They are often conceived as Anglicised - and by dint of that, of attenuated Scottishness - the burdens of national representation being devolved onto the working classes, often dominated by urban, west coast sounds and images. Although I have not enlarged on the proposition before here, one of the most irritating manifestations of this tendency is Scottish theatre. All too often, I have sat in middle class audiences, watching middle class actors perform material composed by middle class authors - cheerfully playing out yet another plucky-working-class-touchstone-of-authenticity type tale, without any sense of embarrassment. It is a complex issue, which I'm conscious that I'm only touching on here. I am certainly not attempting to make the case for banishing such material for our stages, nor indeed denying that such parliamo Glasgow offerings are without their charms. It is just the almost hegemonic status of such dramatic material and the delusions it fosters that I find problematic. The crucial point is the tied presence and absence of the Scottish bourgeoisie. To paraphase (I think) Christopher Whyte or Cairns Craig, it conspires at its own invisibility.

There is also a curious gendered aspect of this. All credit to Gerry Hassan, one of the few folk in our public life to try to talk about Scottish masculinities. Gerry has contended that men are everywhere and nowhere - and that too often, we lack a vocabulary, range of images and narratives about what it means to be a Scottish man. The same point can be made, forcibly, about Scottish bourgeois masculinities, which are doubly silenced, both on the gendered and classed register. I've made the point previously, in a closer look at some elements of the small body of gender research we have, which engages with Scotland. As some of you may know, for the time being, I live in Oxford. I am always surprised when folk tell me that the town is "very English", struck by the contrast with Edinburgh. Both places are strongly associated with their respective institutions of learning, representations of them overwhelmingly defined by their bourgeois citizens (in the case of the latter, prompting Irvine Welsh's strong dislocating reaction, in Trainspotting) . In English terms, Oxford is also very much part of the South - which are least suggests questions about who dominates representations of Englishness, who can claim to encapsulate its authentic qualities? While Oxford is able to assume such a national mantle without much difficulty, Edinburgh continues to be problematic. Pleasingly paradoxically, the Scottishness of the Scots capital is at best suspect - and has been for some time. This is just a hastily composed gallimaufry - but I think begins to suggest some of the interest of thinking in a more nuanced way about the commonplace understandings of social class - and what is inexpressible or difficult to express, expelled from our public discourses by embarrassment or long neglect.

While the terse quantitative data of the Scottish Election Survey has limited explanatory potential in such a complex field - its findings are not without their impressionistic interest. Firstly, look at the data on subjective identification as middle class....

Respondents subjectively identifying as middle class...

SNP ~ 37%

Labour ~ 16%

Tories ~ 22%

Liberals ~ 8%

Greens ~ 9%

Others ~ 8%

And according to social grading's objective criteria...

AB voters (upper middle & middle classes)...

SNP ~ 41%

Labour ~ 25%

Tories ~ 14%

Liberals ~ 5%

Greens ~ 8%

Others ~ 7%

And...

C1 voters (lower middle classes)

SNP ~ 41%

Labour ~ 25%

Tories ~ 17%

Liberals ~ 8%

Greens ~ 6%

Others ~ 3%

Professor Mitchell's slides do not record the brute number of people we are talking about here - so it is impossible at this point to see whether subjective identifications as middle class are significantly smaller than those identified as such by "objective" social grading criteria. I suspect so. It is the discrepancies which strike me as particularly interesting. For example, amongst AB and C1 respondents, the Conservative vote is 14% and 17% respectively - but amongst those who subjectively identify as middle class, it runs between 5% and 8% higher at 22%. Although it would be important to look at how many folk we are actually talking about - these findings might suggest an interesting correlation between self-identifying as middle class and voting Tory. Certainly, in anecdotal form, I know a number of folk who recount the idea that certain people of their acquaintance started voting Tory, as a signifier of their conceit of themselves and place in the world. Further to the characters with which this blogpost opened, it is equally interesting to note that Labour support ran at 25% amongst AB and C1 voters - but only 16% of those subjectively identifying as bourgeois voted Labour. Again, we have to be careful here*. The SES data, as presently presented, doesn't allow us easily to compare across subjective and objective categories. We don't know the actual numbers of respondents in each group, so at the moment, we cannot tell for sure (but can guess) how far the objective and subjective class categories overlap. However, the fact that there is a 9% difference between objective classification as middle class, and subjective identification as middle class amongst Labour voters, might well suggest that a significant number of them either believe themselves to be working class, or abstain from a class-based analysis altogether. We'd have to see the figures and not just the percentages, to be sure. As those who read my post the other day will have seen, the working class data (subjective and objective) breaks down as follows...

Respondents subjectively identifying as working class...

SNP ~ 47%

Labour ~ 33%

Tories ~ 7%

Liberals ~ 4%

Greens ~ 3%

Others ~ 6%

C2DE voters (working classes)...

SNP ~ 47%

Labour ~ 28%

Tories ~ 9%

Liberals ~ 4%

Greens ~ 4%

Others ~ 8%

Again, we don't have numbers of respondents - only percentages - but a few interesting points can be picked up. Firstly, while the SNP vote is stable across subjective and objective categories - the Labour vote decreases by a not insignificant 5% when one moves into the objective register. Bluntly, 5% of the Labour vote conceives of itself as working class, but isn't according to occupational criteria. Interestingly, despite protestations to the contrary, the Greenies are attracting only tiny percentages amongst working class respondents, whether subjectively or objectively defined. Finally, and in some respects, perhaps most interestingly, are the results under the third subjective class category - those who do not identify with any class at all. The data is striking:

Respondents subjectively identifying as having no class...

SNP ~ 53%

Labour ~ 17%

Tories ~ 14%

Liberals ~ 4%

Greens ~ 4%

Others ~ 8%

A truly walloping lead for the Nationalists, 36% ahead of their nearest Labour rivals. There is a fascinating ideological aspect to this. One aspect of Scottish Nationalism - and indeed nationalism as such - which has historically concerned (some) socialists and communists, is its capacity to leech energy from the class struggle. In place of a united working class, contending against the rapacious bourgeoisie, you have nationalist division between English and Welsh and Scottish workers, whose energies are dispersed rather than united by a nationalist politics. I don't share the view - but I know a number of folk who would still hold to and proselytise for it. Unlike the social grading data and the subjective identifiers, we are unable at this point to set subjectivity beside objective criteria, and see how else we might categorise these "classless" respondent, and where in the brute boxes of ABC1 and C2DE most of them might fit - or how they are distributed across social grades. This is a pity, but it does pose a few pungent questions. First and foremost, what are the characteristics of these "classless voters"? Given how problematic middle-class identities can be in Scotland - indeed as I remember, David McCrone once suggested that there is a strong version of Scottish nationalism, which sees class as a wholly alien and English fixation - what does the SNP's majority amongst respondents of this character suggest about N(/n)ationalism's appeal?

28 June 2011

After the consuming ballyhoo about the jurisdiction of the UK Supreme Court in Scottish criminal cases, you may recall that Alex Salmond appointed a small body of hoary legal gentlemen to a Review Group. Their given terms of reference are as follows...

"To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom; To consider the criticisms of and various suggested amendments to those mechanisms in light of current assessments, including criticisms, of their operation; and to advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure Scotland's unique system of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act."

The panel includes four souls. In the chair, is former Court of Session judge and Labour cross-bench peer in the House of Lords, Lord McCluskey. Alongside him, Salmond selected Sir Gerald Gordon - an eminent writer on criminal law of long experience and Sheriff Charles Stoddart. Finally, the Review also includes the Edinburgh's Professor Neil Walker, who occupies the University's marvellously named Regius Chair of Public Law and the Law of Nature and Nations, formerly held by the SNP's own Professor Neil MacCormick. Walker also completed a report for the Scottish Government in the last session of Holyrood, reviewing the broader issue of Final Appellate Jurisdiction in the Scottish Legal System, including but not limited to the issues presently being discussed by the Review Group.

Although not the final fruits of their deliberations, the Group have published their first report on the issue. Interestingly, this report is written in a very direct style, which deliberately aims to abstain from bamboozling the lay reader with legal obscurity. This material is relegated to a rather chubbier Appendix and supplementary text. This directness will no doubt be appreciated by such wider audience as this document receives. For my part, I was pleased to see a clear recognition of the respective constitutional politics which are engaged by controversies about the UK Supreme Court's jurisdiction. In a passage headed Realities to be taken into account, the Group note:

34. For those who do not wish to be part of the UK State, arguments about the retention of the Supreme Court as a matter of constitutional integrity will carry no weight.

35. Nevertheless while Scotland remains in the United Kingdom it is clear, in our judgment, that, whatever alterations are proposed in amendments to the current Scotland Bill as we note below, the prevailing constitutional position makes it unrealistic to suggest that the Supreme Court should not have a continued jurisdiction to determine what might conveniently be called demarcation questions. In this context, these are questions concerning whether or not acts, legislative or executive, of statutory bodies or ministers whose functions are defined and limited by the Scotland Act 1988 [sic], including acts in the domain of criminal law and justice, are within the powers conferred on these entities by that legislation.

For those who suspected that Salmond had dragooned a phalanx of Nationalist party men into composing this independent review - to see off the Advocate General's earlier Expert Group which reviewed the same topic - the practical Unionism of this report will disappoint expectations. Reading Professor Walker's earlier report should also have dispelled such lingering impressions, as should McCluskey's partisan allegiances, despite his judicial career. In a leader column, the Scotsman suggests that "McCluskey throws Salmond a legal bone of contention", but argue that...

"While [the Report] leans strongly to the First Minister's critique of the place of the Supreme Court in Scots law, in recognising the role of that court in human rights matters, it denies him outright victory. He will enjoy gnawing at the meat, but may choke on the bone."

Throughout, the Group warmly emphasises points of agreement with Jim Wallace's group, whose findings I have discussed before, in the context of an earlier Supreme Court stooshie, which blew up around its Cadder judgment. At that time, I was intensely critical of Fiona Hyslop's contribution on Newsnicht, which conflated description and prescription, is and ought. What is realistic, ask the four wise men? Their answer, at para [40]...

"All that we can see as falling within our terms of reference and the constitutional realities of the situation is a reconsideration of the manner in which jurisdiction of the Supreme Court should be exercised. The purpose would be to ensure that, while the Supreme Court would continue to make final and binding rulings on human rights issues, including those arising in criminal cases from Scotland, it would do so in a way that reflected more clearly the long history of separate development of the Scottish criminal justice system and the closely associated tradition of the High Court of Justiciary as the final court for determining criminal justice in Scotland."

However, the second half of their remarks homes in on the issue of leave to appeal - and the relationship between the High Court of Justiciary and the UK Supreme Court. It is on these terms that they propose an amendment to the Scotland Bill. Styling the Supreme Court's jurisdiction at present as a "striking anomaly". They write...

The position elsewhere in the UK

49. In the rest of the UK, leave to appeal to the Supreme Court, including special leave, cannot be granted unless the court from which the appeal lies grants a certificate that a point of law of “general public importance” is involved in the decision, and that court considers that the point is one that ought to be considered by the Supreme Court.

50. If the court from which the appeal lies refuses leave but grants the necessary certificate, then – and then only – can the Supreme Court entertain an application to grant special leave, and grant it if so minded. The clear result of this is that alleged violations of Convention human rights by public prosecutors the UK can be brought to the courts under the process for assessing whether to certify a point of law general public importance of the Human Rights Act and its ancillary procedures but the cases in which such alleged violations are dealt with cannot go to the Supreme Court unless the court below issues the necessary certificate.

• Why should the High Court of Justiciary not be placed under the same regime as elsewhere, whereby, there can be no right of appeal to the Supreme Court except in circumstances where, having considered the case in detail, the High Court of Justiciary grants a certificate that the case raises a point of law of general public importance?

• Why therefore should the Supreme Court have a wider jurisdiction to hear appeals in Scottish criminal cases than it has in respect of criminal cases from the rest of the UK?

• Why, in further consequence, should the actions of Scotland’s public prosecutor that are alleged to threaten a violation of statutory human rights be dealt with differently from those of public prosecutors elsewhere in the UK?

A striking anomaly

52. In our view it is anomalous that the High Court of Justiciary, which for so long has been recognised as the “apex court” in criminal cases originating in Scotland, should find that, as a result of a devolution statute, it has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to applying the law governing human rights issues in criminal cases.

On the basis of this reasoning, the Group suggest an amendment to the Scotland Bill, meaning that the UK Supreme Court could only grant extraordinary leave to appeal, where the appellant had already convinced the High Court of Justiciary to issue a certificate that a point of law raised in the case is of “general public importance”, even as they deny the appellant leave to appeal. It remains to be seen what the Tory-lead Westminster Government might do with these proposals and whether further amendments might be made to the Scotland Bill to accommodate them, before its final reading in Westminster.

For my part, I have not independently investigated the legal issues discussed by McCluskey et al in any depth - but given the authors' collective expertise, I'd be most surprised if they had misconstrued the legal situation. It should be uncontroversial to suggest that the scope of appeal rights is not, generally speaking, something politically to exercise the public or parliament. One immediate question suggested by these proposals is - would their operation have made any difference in the cases which provoked particular controversy, Cadder and Fraser? That would depend, of course, on how the High Court of Justiciary interpreted the idea of “general public importance”, and in turn, if they granted such a certificate to Cadder or Fraser, allowing the UK Supreme Court to exercise its jurisdiction over their cases. At least in the case of Cadder, it is profoundly difficult to image Justiciary refusing to grant such a certificate, which would have prevented the UK Supreme Court from hearing the case.

I also wanted to say a word or two about the "realities" mentioned by the Group, and their explicit recognition that a Nationalist politics - and implicitly, a Unionist politics - is very much implicated in this controversy. This shouldn't be troubling. An independent Scotland would have no use and no need for the UK Court's jurisdiction. Those aiming at an independent Scotland are being perfectly consistent, in rejecting it, while Scotland continues to be part of the Union. This is a political position. Symmetrically, if one is a committed Unionist, that too is involved in assessing what jurisdiction, if any, the Supreme Court might exercise. Although Unionists find it easier to disavow the political contents of their proposals, neither Nationalists nor Unionists are offering us a "common sense", value-free, a-political analysis, nor could they do so. The politics of the future of the UK is immediately and unavoidably involved in devising any schemes and solutions, which concern ideas of "constitutional integrity", as the Review Group explicitly recognise in paragraph [34].

It is a pure nonsense to argue that Salmond is in any respect "wrong", when he argued that the UK Supreme Court should have no jurisdiction over Scots criminal cases. To think along these lines is to treat jurisdictional questions as if they were questions of fact, and not the domain of politics proper and naked judgments of value. That the Advocate General's expert group supported the continuing jurisdiction of the UK Supreme Court - and that Salmond's own body shared that sentiment - reflects their values, or in the latter case, their judgements about expediency in a given constitutional situation which they anticipate will continue. Their conclusions are no more the necessary conclusions of deductive reason than your views, or mine. I am not a fan of this sort of expertise politics, where knotty normative questions are transformed into dull dog facts, about which socially powerful and select personages then "inform" the credulous public, handing down their decisions. To be crystal clear, I am resolutely not opposed to deliberation and analysis. Over the years, a number of such reports have done vital work of clarification and critique. However, it is all too tempting all too often to shunt political issues within a framework of expertise, transforming mere opinion into the socially more mighty stuff of professional knowledge, based on independent learning and unencumbered by any outward, suspect signs of political affiliation. The Review Group and the Advocate General's parallel body may not have been party political, and their independence of mind is not to be impugned - but the sorts of answers such groups produce are powerfully mediated by often undisclosed political assumptions, which a significant segment of the public may not share.

27 June 2011

I assume the book belonged to my late great grandfather. Several years ago, it caught my eye on the shelf at home on account of its lurid title: The Wild Irishman, published in London in 1905. Its author - one T W H Crosland (left) - is styled on the inside cover "the author of The Unspeakable Scot". Quite why this particular eccentric jeremiad was ever purchased by my relative, I have no idea, but it proved an entertaining accidental diversion. Intrigued by the gratuitously insulting chapter headings, I read on, and was soon chortling at the Crosland's outrageous, ornate, over-ripe - and at times, basically racist, prose. The author reserves his particular bile for the Scotch, a fondness that finds expression in his chapter in The Wild Irishman on "Dirt", which commences...

"I suppose that next to the Scotch, the Irish are out and out the dirtiest people on the earth. But whereas Scotch dirt is a crude and gross affair, Irish dirt has still a pathetic and almost tender grace about it."

Blogging has been quiet on the peaty front, on account of an extended sojourn down to London to see some cronies. As I wandered through those chartered streets, I was soon reminded of Crosland's comparative analysis of both the Irish and the Scotch in London. Crosland particularly despised the swarm of Fleet Street Scottish hacks - a point much enlarged upon on his earlier work The Unspeakable Scot (1902). Not a fan of the“stern, calculating Scotch peasant has during late years dedicated his son to the practice and service of journalism”, Crosland was at least willing to concede that:

“He [the Scotsman] possesses too certain solid qualities which are undoubtedly desirable in a journalist. For example, he is punctual, cautious, dogged, unoriginal and a born galley-slave.”

A whole chapter of his 1905 book is committed to "the London Irish". He contends...

"... the London Irish do not shine effulgently. None of them is at the top of things, as it were; none of them has got very far above the middling. The reason no doubt is that the Irish temperament is coy. The Scotchman who comes to London knows that he is an alien and an interloper, and despised of his fellow-men, but he blusters it out. The Irishman, on the other hand, feels his position keenly and refuses to be other than diffident."

Crosland was very keen on provocative epigrams, and both books are full of riling and insulting jabs at both the Irish and the Scots. Several are eminently quotable, but I'll limit myself to a couple more, from The Unspeakable Scot. Given their relative antiquity, both books are now freely available online, for kindlers and freebie-seekers, seeking comic racist tracts to alleviate the boredom of the commute. Firstly, a classic bit of Crosland, laying into cherished Scotch pieties...

“Your proper child of Caledonia believes in his bones that he is the salt of the earth. Prompted by a glozing pride, not to say by a black and consuming avarice, he has proclaimed his saltiness from the house-tops in and out of season, unblushingly, assiduously, and with results which have no doubt been most satisfactory from his own point of view. There is nothing creditable to the race of men, from filial piety to a pretty taste in claret, which he has not sedulously advertised as a virtue peculiar to himself.”

And secondly, on the Scots tradition of education Alex Salmond is so keen on espousing. I dare say Crosland would not have been an admirer of our First Minister...

“All the same, I concede that the Scotch really do love learning. I gather, too, from unbiased sources that they starve their mothers and make gin-mules of their fathers to get it. And when it is gotten, when a monstrous and unlovely possession it usually turns out to be. For your Scotchman always takes knowledge for wisdom. His learning consists wholly of “facts and figures”, all grouped methodologically round that heaven-send date A. D. 1314, and if you cannot tell him off-hand the salary of the Archbishop of Canterbury, the population of Otaheite and the names of the fixed stars, he votes you a damned ignorant Southron, and goes about telling his friends that he shouldn’t wonder if you never went to 'the schule'.”

24 June 2011

My thanks to the helpful Dr Christopher Carman for alerting me to the fact that some initial slides from the Scottish Election Study of 2011 have now been published. Many of you will have seen the edition of BBC Newsnicht this week, which enjoyed an early sight of the Study's preliminary findings about May's Holyrood election. The research team of political scientists, based at the University of Strathclyde, describe their methodology thus:

"In 2011, the Scottish Election Study took the form of a two-wave internet panel survey, with data collection undertaken by YouGov. The aim of the study is to explain the decisions of Scottish voters on 5 May, both whether and for which party they voted. As well as voting behaviour, the survey questionnaires cover the following topics: attitudes to parties and leaders; issue opinions and evaluations; national identity; constitutional preferences; multilevel party identification; preferences for political compromise; socio-demographic characteristics. In addition to the pre/post-election panel, the 2011 SES also reinterviewed respondents to the 2007 Scottish Election Study."

Data collection took place in two waves, one before and one after election day. The first engaged with 2,046 respondents, with fieldwork being conducted in late April. The second wave occurred later in May, with 1,760 respondents. While analysis of the data is still ongoing, the research team have now made three sets of slides available online, laying out preliminary findings.

The first, from Dr Carman's presentation from a seminar at the University of Strathclyde held this week, looks at issues of turnout; the use of two ballot papers for constituency and regional votes in Holyrood 2011, and its comprehensibility; the abortive AV referendum and respondents understanding of the AV system - and finally, on the phenomenon of "multi-level party support" in Holyrood and Westminster, or to borrow a phrase from John McTernan, Scotland's "promiscuous", Bobbing John electorate.

Secondly, we have the University of Essex's Dr Rob Johns, who asks Why does ‘performance politics’ win Scottish elections? Johns submits that there are four key aspects of context: 1. The Scottish Parliament matters; 2. Class and party dealignment; 3. Ideological convergence and 4. Reshaping of the constitutional issue. The first limb focusses on how respondents envisage key policy areas, including law and order, health - and so on. Do they conceive of outcomes in these policy areas as being primarily due to the UK or the Scottish Government? Secondly, Johns looks at responses to the question “Do you usually think of yourself as being a supporter of one particular party?” While 44% of respondents said ‘no’, the study revealed that many said ‘yes’ then abstained or defected in the most recent Holyrood election. The third limb examines perceptions of "ideological convergence" between political parties. The fourth plucks out the issue of the constitution.“How do you think the return of an SNP minority government would affect the likelihood of independence?”, asked the research team. According to 1,784 respondents to the Study the return of an SNP minority administration would make independence...

Much more likely ~ 7%

Bit more likely ~ 29%

No difference ~ 42%

Bit less likely ~ 13%

Much less likely ~ 9%

Johns then turns to look at credit and blame, party image - capable of strong government, united, in touch with ordinary people, keeps promises - followed by a comparative analysis of leader-party popularities. All interesting and very much worth a look.

Lastly, at least for now, we have Professor James Mitchell's slides, which deal with a couple of issues of particular interest to me - support for party by gender, and by social grading. In the interests of comparative brevity, I'll tease out the Study's findings on these two issues - and simply note the other findings, without much getting into them. Those of you who stayed with me during the Holyrood campaign may remember my series of posts, looking at the disaggregated data in YouGov's pre-election polling, focussing throughout on gender and class. One striking feature of this series of polls was the thumping leads the SNP were recording amongst C2DE voters - those assessed to be working class based on the occupational criteria. The polls also tended to show a narrowing "gender gap" in the SNP support, with increasing percentages of women, minded to support the Nationalists. My interest in that subject goes back some time, with my first dedicated post on the topic dating from August 2010, filling out some of the context informing a column by former Salmond special advisor Jennifer Dempsie in the Scotland on Sunday, arguing that "winning over female voters" was "crucial to SNP ambitions". Unfortunately, the wider media didn't really pick up on these interesting trends in the course of the campaign. If they had done so, the Study's conclusions would be much less surprising, extensively anticipated as they were.

Significantly, Professor Mitchell's study confirms YouGov's pre-election polling which suggested a narrowing gender gap and a significant lead amongst working class voters. According to the survey data collected by the Study, their respondents voted as follows, by gender (N.B. Mitchell is referring us to the Study data on regional voting in the 2011 Holyrood election).

Male respondents (SES)...

SNP ~ 46%

Labour ~ 24%

Tories ~ 12%

Liberals ~ 4%

Greens ~ 6%

Others ~ 8%

And women...

Female respondents (SES)...

SNP ~ 43%

Labour ~ 29%

Tories ~ 12%

Liberals ~ 6%

Greens ~ 4%

Others ~ 6%

On social class, the Study asked about (a) subjective social class, namely how respondents self-identify and (b) objective social class, based on the familiar ABC1/C2DE categorisations I've discussed previously. Firstly, the Scottish Election Study's working class data, subjectively then objectively defined:

Respondents subjectively identifying as working class...

SNP ~ 47%

Labour ~ 33%

Tories ~ 7%

Liberals ~ 4%

Greens ~ 3%

Others ~ 6%

C2DE voters (working classes)...

SNP ~ 47%

Labour ~ 28%

Tories ~ 9%

Liberals ~ 4%

Greens ~ 4%

Others ~ 8%

In brief, amongst those subjectively identifying as working class in the Election Survey, the SNP beat Labour by 14%. According to social grading's objective criteria, the gap was even wider - with Labour lagging 19% behind the SNP. Interestingly, this outcome echoes (and amplifies) the results of YouGov's pre-election polling, which recorded an SNP lead over Labour amongst C2DE voters of a magnitude varying from 4% to 15% in the constituency vote and -1% to 10% in the regional vote. Interestingly at the beginning of the campaign, the polls suggested that ABC1 voters remained to be convinced by the Nationalists, holding on the Labour allegiances more tenaciously than their C2DE fellow citizens. According to Mitchell's data, bourgeois participants in the Survey reported the following voting behaviour, with the same subjective then objective analysis...

Respondents subjectively identifying as middle class...

SNP ~ 37%

Labour ~ 16%

Tories ~ 22%

Liberals ~ 8%

Greens ~ 9%

Others ~ 8%

And according to social grading's objective criteria...

AB voters (upper middle & middle classes)...

SNP ~ 41%

Labour ~ 25%

Tories ~ 14%

Liberals ~ 5%

Greens ~ 8%

Others ~ 7%

And...

C1 voters (lower middle classes)

SNP ~ 41%

Labour ~ 25%

Tories ~ 17%

Liberals ~ 8%

Greens ~ 6%

Others ~ 3%

The rather bizarre looking results of the subjective social class findings - 22% of which is Tory - can probably be explained by factoring in a third option given to respondents - to subjectively identify with no social class at all. Amongst those respondents, the results were striking - and as follows.

Respondents subjectively identifying as having no class...

SNP ~ 53%

Labour ~ 17%

Tories ~ 14%

Liberals ~ 4%

Greens ~ 4%

Others ~ 8%

Professor Mitchell's slides also lays out the voting data according to national identity - with an interesting and sensitive range of options being afforded to those questioned, allowing those answering to give priority to British or Scottish identities, declare an equivalence between them, or to deny either. The Professor also sets down voting by religious affiliation, albeit with a fairly limited range of categories. Three in fact: no religion; Church of Scotland or Catholic. The data on these issues can be found on his ninth slide. No doubt the Study will generate plenty of other eccentric pieces of data to keep amateur psephologists in the public cheered and distracted from their other labours, for some time to come.

23 June 2011

I'm delighted. At First Minister's Questions today, just a short time after the conclusion of the Stage 1 debate on the general principles of the Scottish Government's Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, Alex Salmond announced that the legislation will be delayed for six months. Time will be afforded for further evidence sessions and more extended examination of these proposals. Parliamentarians will not be forced into a final vote on all of the issues next week. This is very welcome. It also made for a bizarre edition of FMQs, with Iain Gray, Annabel Goldie and Willie Rennie left flailing, totally wrong-footed - their raft of critical questions about the detail of the Bill suddenly losing their political vitality. Iain Gray had the hardest time of it, having to flim-flam through a number of spent supplementaries, while Rennie made no attempt to recover from the crumpling of his pre-planned inquisition, simply thanking the First Minister in lieu of asking him another question on any topic of his choice. Ciceronianstuff.

The Bill as drafted is a mixed bag in policy terms, with a good many outstanding issues of legal definition and extent which need to be properly thought through. Despite superficial agreement on the goals of the legislation, there are also much more fundamental issues of principle, including the criminal regulation of speech and ideas, which have not yet remotely been explored. For instance, I think putting threatening communications on a statutory footing is a wise idea. The common law on uttering threats is profoundly difficult for any interested member of the public to come to any understanding of. That said, I am very much opposed to the idea of "bringing Scotland into line with England", and summarily introducing a law criminalising "stirring up religious hatred". The SNP used to share that position. I have not heard an adequate explanation about what has changed in five years, to turn SNP opposition to Blair's proposals into support for these proposals. Adherence to the directions of the party leadership and an unquestioning faith in their good judgement is not a principle I am willing to live by. Thankfully, with a longer timetable for examination of these plans, such issues can now be properly aired. Or at least, the possibility for a decent discussion is not briskly foreclosed by a weary, pre-summer examination, with one's tired mind fixed on sunlit climes and empty, relaxing days. Whether or not I agree with the final shape of the final Act, a decent deliberative process on these issues is vitally important. All credit to Salmond, albeit belatedly, for conceding the point.

On the proposed football-related offenses, there are a number of complexities. I don't disagree with the analysis that the scope of breach of the peace has narrowed in recent years. As Roseanna recognised in her evidence to the Justice Committee, there are differences of opinion about the extent to which the criminal law should be defined in clear and comprehensible terms. Some would seek to defend greater flexibility (for which read, lack of definition and case-by-case judicial decision-making) - others would insist on the virtues of clarity and comprehensibility in our criminal legislation, even if that affords the law a more limited regulatory capacity, letting some bastards off. Long term readers may recall the outrageous decision of the Court of Justiciary in Hatcher v. Procurator Fiscal, Hamilton, in which the public/private distinction left a great many people without legal protection from domestic abuse not amounting to assault. Anticipating this development, Holyrood had already passed § 38 of the Criminal Justice and Licensing (Scotland) Act in 2010 - and commendably, the Government speedily brought the section into force, in the light of the Hatcher judgment. The section introduced a new offence of "threatening or abusive behaviour". Unlike common law breach of the peace, § 38 does not require a "public element". This still-youthful offence is already on the statute book, but has been almost entirely overlooked in discussions of this Bill, with the limitations of breach of the peace being pressed into service, to justify the new provisions. This is problematic.

On the 15th of June, I argued that there was a strong political case for delaying the Offensive Behaviour in Football and Threatening Communications (Scotland) Bill. The SNP majority in Holyrood has already been assailed by the argument that it enjoys excessive (albeit democratically mandated) dominance of the institution and concerns that its convenors in the parliamentary Committees and wealth of backbenchers might not prove themselves of sufficiently stern and independent mettle, to hold the government to account and properly scrutinise its proposals. Delaying their "anti-sectarianism" Bill, I suggested, was an excellent opportunity to emphasise these credentials, both for the government and its cohort of backbenchers and convenors. I wrote:

"It strikes me that if you have to change your mind in government, why not change your mind on an issue you actually got wrong, which is unlikely to do you any political damage in the longer term, which serves the difficult function of emphasising the independence of your own backbenchers and government submission to parliament - and for which the opposition will find it difficult seriously to criticise you? Such a conjunction of factors seems unlikely to recur any time soon. Against this proposal - and the political case for deferring the Bill - you might put up the argument that so radically to depart from your ordained schedule for the first major policy act of your re-elected administration is a sign of weakness or an admission of error."

I am under no illusions that Salmond took my advice - but these positive political arguments for deferring the final analysis this Bill stand. While some may crow about muck-ups and boorachs in the Scottish Government, and who knew what when, Salmond's decision to alter the Bill's timetable is a very visible indication that he will not use his office insolently, imposing an imperial will on the parliament and the country, despite the well-grounded complaints of both. In many respect, the Bill's pace only aggravated rather than alleviated these concerns about the SNP's power in the institution and the role of its backbenchers. Beyond the politics of impressions given, there were also plenty of good, substantial reasons for checking the hasty passage of this law. There were the hasty evidence-taking sessions before the Justice Committee, which were troubling insofar as both Ministers and members struggled at times to entertain a proper discussion about the legal scope of the proposals, fully in command of their brief. Moreover, in the short intervening period between publication and consultation on the text itself, the Committee attracted a number of written submissions from individuals, churches and football clubs, concerned at the breakneck speed of the legislation. Moreover, this legislating-at-speed caused the Scottish Government to be faced with a legal action in Scots Courts. Represented by Aidan O'Neill QC, the Christian Institute and CARE for Scotland had plans in train to seek an interdict from the Court of Session against the government's actions. Whether or not this action would have succeeded, such things have to be defended - and added to the manic air surrounding the legislation.

Given Salmond's reputation for cunning, some will likely try to convince us that this move was planned all along. This does not strike me as convincing. First and foremost, if Salmond had schemed the whole scheme out in advance, then Roseanna Cunningham has particular cause to be profoundly aggrieved with him. In this morning's Stage 1 debate, the Minister continued to defend the government's public timetable and emphasised the problems which, in her view, would attach to introducing new legislation in the middle of the coming football season, rather than at the beginning. With the delay ordained by the First Minister, this second scenario is now the policy of the Scottish Government. The parliament's stage 1 debate began at 9.15 am and ended with General Question time at 11.40 am. So, either the decision to change course was made after the debate had begun - or it was made long before and Roseanna got needlessly screwed over. Either proposition is plausible. If you watch the footage of FMQs, you can just spot Ms Cunningham abstaining from joining in with her colleagues' applause to the Maximum Eck's answers. Significant? Mibbies aye, mibbies naw. For my part, it strikes me as much more likely that this is a last minute change of direction, made when Cunningham was in the parliament and on her feet, and that the news came as something of a shock to the junior Justice minister. Machiavelli, it wasn't. For this reason, I imagine Cunningham will be incandescent about having the legs unexpectedly taken out from under her in the chamber of the parliament - and understandably so. It would be enough to make many ministers consider their position. Yet, as Alex Massie contends, this isn't the end of the line...

"Thinking again is a good first step but no more than that and will be worth little, in the end, if the bill survives in anything like its present form. Government has no right to peer into men's souls and nor should it be entitled to place unwarranted restrictions on their speech and thoughts, far less suppose that even a draconian, catch-all bill of this sort can actually achieve any of the aims - however worthy they may be thought - its few remaining supporters desire ... Good sense has prevailed today; some vigilance is still required."

For all that, credit is due. It would have been all too easy for the government to crash pig-headedly on, cuffing and cudgelling their way out of their predicament, feart that they'd take a drubbing for changing their plans at the behest of others and the implicit recognition that their original haste was folly. They did not do so. There did not appear to be many stirrings on the SNP backbenches, that would disturb the stately passage of this flagship policy, if Salmond had insisted on it. He did not. Against the sea of troubles roiling about his Bill, Salmond decided to take such slings and arrows as are flung his way - and lay down his arms. No doubt the Maximum Eck did so unhappily, hand forced by circumstance - but it redounds to his credit that he didn't charge on in the face of everything. For the first time in several weeks, we have a politically cheerful Peat Worrier, turning the clods with a ruby whistle on his lips.

“The spirit of sectarianism has been the cause of our failures. We have imprisoned our own conceptions by the lines, which we have drawn, in order to exclude the conceptions of others.”

I'm feeling a bit under the weather today, so I don't intend to go into these matters in any depth at the moment. In the meanwhile, Alex Massie and Ideas of Civilisation have had their say on the proposals. Massie is inveterately hostile, styling it "a Bill that shames Scotland"; while IoC tells the tale of "Humpty Dumpty the Sectarian Bigot". As to the evidence sessions themselves, they confirm two fears. Firstly, confusion and uncertainty about the scope of these proposals reigned and the Committee clearly had insufficient time to come to a clear understanding of the legal scope of these proposals, never mind their desirability or potential problems which the government drafters have not foreseen. Secondly, there was a great deal of the rhetoric I've criticised before, which recognises that broadly-drafted laws may well criminalise a great gamut of unintended conduct, but soothes parliamentarians with reassurances that the trusty authorities can be relied upon to limit enforcement of the laws to the real villains, so we shouldn't really worry about it. On the first fear, I'm afraid that even the Minister herself, sponsoring this would-be law and guiding it through parliament, did not always appear fully in command of the detail of her proposals. Like Scots Law Thoughts, I was particularly surprised to hear Roseanna argue, when asked how many people she envisaged would be prosecuted under the Bill's two new offences, that...

"I cannot answer your question. It would perhaps be better to ask the police witnesses what they believe is the likely extent to which they will be able to use the legislation. All I would be able to do is take a wild guess, but I am not in a position to do that. We are obviously not expecting the police to arrest 5,000 people, but if disorder of the kind that we have seen kicks off, we expect the police to use the legislation, where they consider it appropriate."

This might be unobjectionable, but for the fact that the Minister makes just such an estimate - or in her terms, a wild guess - in the Explanatory Notes to the Bill, explaining the Government's financial calculations about how much it will cost. The Notes explicitly anticipate that there will be between five to ten sheriff and jury trials under this Bill [Explanatory Notes, para 65] and an additional 50 - 100 additional summary cases per annum [para 66] for section 1 offences (offensive behaviour at regulated football matches). Similarly, the Government estimate that the Bill's section 5 threatening communications provisions will see an increase of between 2 - 5 solemn cases each year [para 73] and 20 - 50 new summary cases [para 74]. Either we have no idea how many people this Bill will see prosecuted, or these financial figures are basically moonshine. My own sense is that Roseanna's oral comments emphasise an important aspect of this - given the breadth of the powers proposed, this is a Bill which could be enforced with a range of intensities and which also relies to some extent on how football fans conduct themselves (at least for section 1 offences).

That no member of the Committee noticed this discrepancy in the Minister's paper and oral submissions, can be taken as evidence that they too are (quite understandably) struggling to conduct an examination of this Bill properly. It is profoundly silly, when a self-imposed haste results in the Bill's lead Minister telling the scrutinising Committee that her officials may well be unable to produce written responses to detailed concerns raised by external witnesses. "We will do what we can in the available time. The short timescale imposes certain difficulties for us, too, in giving as much information as we can", she said. More positively, I'm much encouraged by the inquisitorial performance of new Justice Committee itself. While it was always going to be a relief to get shot of Baillie Bill Aitken, it was a joy to hear Graeme Pearson, one of Labour's new MSPs actually express the following sentiments...

"I have seldom heard a police officer who did not welcome additional powers. I do not think that the fact that the police welcome additional powers is, in itself, a virtue. I am more interested in a free community than in a community that is policed to the nth degree."

In the event, the media mainly focussed Roseanna's response to Tory member of the Committee, John Lamont. Here's the section of the official report (which one should always remember, tends to deviate somewhat from what the speakers actually said...)

John Lamont: The minister will be aware of the words of the song "Flower of Scotland" and those of the British national anthem. Can you envisage the singing of either of those songs becoming offensive behaviour under the act?

Roseanna Cunningham: The glib answer to that is no, of course not. However, in terms of a criminal offence, all the surrounding facts and circumstances might turn that into something problematic. It might have been more appropriate to consider, for example, "Rule, Britannia", which I understand is frequently sung on one side of the terraces in Scotland and which I would not regard as being an offensive song. However, we do not define which songs are offensive and list them, because whether something is offensive is a matter of the facts and circumstances of the case. I have seen hundreds of Celtic fans gesticulating across an open area to Rangers fans by making the sign of the cross in a manner that I can only describe as aggressive. The sign of the cross is not, in itself, offensive, but I suppose that in circumstances such as Rangers and Celtic fans meeting on a crowded street, it could be construed as being so, which shows why the circumstances are so important. My immediate answer to your question is no, of course not. However, no matter how inoffensive an action, the response must always be qualified with the caveat that it depends on the circumstances.

John Lamont: Just to be clear, is the minister saying that if supporters want to be absolutely sure of not falling within the definition of the act, they should probably avoid singing those songs?

Roseanna Cunningham: I will not be drawn into making that kind of statement, Mr Lamont. You know perfectly well what I am saying, and so does everybody else.

For those interested in hearing what Roseanna had to say, here is live coverage of the first evidence-taking session from the BBC's Democracy Live. The second session is now also available here. Those wanting to skim it can read the official report of the Committee's proceedings here. For my part, I did not find it a particularly reassuring performance, just nine days before this Bill is expected to be passed into law...

20 June 2011

Instinctively, I can understand the irritation which a character like Lord Hope of Craighead can provoke. Those who watched the BBC's documentary following four of the Justices of the UK Supreme Court (of which, a brief clip here), may recognise what I called Hope's "slight, rather dowdy and bespectacled person". As he shuffles around a supermarket, or scurries through the London underground, only the most obsessive judge-spotter would be able to identify this quiet man under his outsize hat. Unlike their American counterparts, no Supreme Court justice in the UK is a household name, despite Alex Salmond's best efforts in recent weeks to single out Lord Hope for special recognition. Day to day, despite the national compass of his judgments, and the millions of people theoretically subject to them, most would struggle to distinguish Lord Hope of Craighead from Adam. That the same is true of the average Holyrood or Westminster backbencher, whatever their allegiances, can never rankle in quite the same way. For those with impatient political urges, there is something about the stiff self-confidence of the judicial character, the tendency to experience and talk about the qualities of their own judgement in unsatisfactory opaque terms, which all too easily nettles. Paradoxically, the sting can be even more pronounced, when it is delivered with the mildness of the Scots Deputy President of the UK Supreme Court. Modesty of manner only aggravates the offence.

For those with a more encompassing idea of the political, who consciously or unconsciously accept critical theories of law, the constitutionally and often politically-laden deliberations of a judge at the highest level, for all of the accompanying shuffling of texts, gathering of submissions and reference to existing case law - can easily look like so much moonshine. Where judges insist their deliberations unerringly entail the conclusions they reach - critical folk, peering in, can readily come to suspect that the desired conclusion is identified first and only then is legal reasoning generated with an eye to its justification. Judges and lawyers also have a tendency to use terms like "objectivity" without any apparent sense of embarrassment, as if they were just old-fashioned grocers, just slapping a case on their scales - and reading off the accurate result in trusty bronze weights. Add to this some of the other legal consciousness narratives of our time - the idea of law as a book of more or less determinate rules, immoveable and independent; the idea that law is there to be tactically manipulated to particular ends; the idea that law is capricious, an expression of more or less arbitrary power - and you have a recipe for a profoundly difficult conversation. Do you believe in the rule of law? What does this rule of law look like, when your laws aren't framed as rules?How seriously should we take judicial disavowals of the political character of their decisions anyway? What then is the legitimate compass for "political" figures to criticise judicial findings?

A few weeks ago, I argued that defending the distinctiveness of Scots Law has its political curiosities, not least in that a very small segment of the Scottish population have any substantial ideas about what distinguishes Scots legal traditions from the English. This flight from detail was confirmed last week in the highest quarters of government. After all of its bilious indicting of Lord Hope for leading English Justices of the UK Supreme Court in obliterating Scottish legal distinctiveness, Scottish Ministers have justified the provisions of their rushed anti-sectarianism Bill by claiming, without any irony, Scotland should be "brought into line with England". The mind boggles. Actually, it occurs to me that we might go still further. If few are likely to rush to the political barricades to defend Scotland's Roman distinctiveness, imagine the tiny band who would form up to defend the "Scottish legal establishment", as it is often styled.

Ideas about this establishment are manifold, some rooted in experience, others fantasies. Yet it is fair to say that the social life and characters associated with Scots law are conceived in profoundly ambivalent ways in our public discourses. In the semiotic sphere, solicitors tend to be overlooked. It is familiar to conceive of the Scottish judiciary and the Faculty of Advocates as a rather queer legal aristocracy, their emblematic musty wigs and gowns and plummy voices picked up in Edinburgh public schools - hilariously incompatible with popular perceptions of the ruling character of Scottish life. Whatever the reality about the social origins, privilege and gender profile of the membership of the Court of Session and Scottish Bar, these organisations are primarily envisaged as defining castes of Edinburgh, and like the city in which they are based, easily conceived as Anglicised (and by consequence, de-nationalised in Scottish terms),haughty, haute-bourgeois, tedious, prosperous - and probably Tory. There is prowess too - the advocate is generally presented as an impressive and prestigious figure. New Club memberships, New Town addresses, participation in selective golf-clubs - for many Scots, this whole cast of contemporary legal characters could be comfortably stuffed and mounted in the National Museum of Scotland on Chambers Street, as exhibitions of reactionary and outmoded manners - stuffy monuments to legal Edinburgh's cockroach capacity to resist time, wind, rain and flood - preserving its ancient privileges and old pomposities. When a legal scandal blows up, it comes as a surprise when this fossil swims up quite alive and quite confident, not seeming to recognise how fustian and out of place in contemporary Scotland it appears. Marble-mouthed characters like Richard Keen QC, Dean of Faculty of Advocates, seen last week in the UK Supreme Court with wig and spectacles perched at rakish and condescending angles respectively, are all too easily pressed into the service of this representation of Scotland's legal world.

As Kenneth Roy noted in a recent edition of the Scottish Review, it is precisely the idea that the conceited-seeming and over-entitled expectations of this Scottish legal establishment were being denied which lent the former Lord Advocate Elish Angiolini her profound symbolic power and charm. There is plenty of malicious glee to be had, imagining setting a Govan coalmerchant's daughter and solicitor over the heads of would-be grandees of the Faculty, who were reduced to gawks and the frustrated puffing of foiled ambition. And imagining is the crucial point in all of this. By no means would I accept this representation of the Scottish legal world unqualified. Indeed some of it is simply false. Yet some approximation of these ideas and images of the legal establishment enjoy extensive purchase in the Scottish public consciousness and public commentary. Despite greater diversity in the professions, despite a large and growing cohort of women, despite the large number of advocates who practice outside Edinburgh, gendered and social assumptions persist unreformed. That such ideas can so easily be summoned to mind are the vital background to the recent UK Supreme Court ballyhoo. As other bloggers have modestly noted, the detailed disagreements about the extent of the UK Court's jurisdiction, the nature of the rights afforded by the European Convention, of the devolution Act and of Scottish legal history, even the justices or injustices of the Cadder or Fraser judgments - are unlikely to mean much to or move most folk, politically speaking. Salmond's rhetoric is much more likely to be understood in terms of more straightforward images and impressions - and the proxy pleasures of telling the arrogant old crows of the Scots judiciary to go and stuff it. The real paradox of Salmond's position is that he is effectively mobilising such critical notions of the establishment against Lord Hope while simultaneously attempting to perpetuate the autonomy of that selfsame legal establishment - and even aggrandise their jurisdiction.

On the other side of things, I do wonder about the strategic implications of the First Minister's roistering. The election is won, but the independence referendum is yet to win. As recent polling on Scottish independence has indicated, Scottish AB voters - the upper and middle classes - present a particular challenge from the N(/n)ationalist perspective. According to TNS-BRMB, Scots bourgeois respondents were the most inveterately opposed to independence, of all Scottish social grades, recording the following response:

AB ...

Agree ~ 29%

Disagree ~ 58%

Don't know ~ 13%

While much of the public may be unmoved by - or even vaguely favour - the tenor of the First Minister's argument with the jurisdiction of the UK Supreme Court, the same is, I fancy, unlikely to be true for these already disaffected AB voters.

19 June 2011

I believe I've mentioned the work of Susan Silbey and Patricia Ewick once or twice before. The Common Place of Law: Stories from Everyday Life was published in 1998. Based on empirical research conducted in the American State of New Jersey, their research was concerned with "social constructions of legality". Key questions include "How do people experience and interpret law in the context of their daily lives? How do commonplace transactions and relationships come to assume or not assume a legal character? And in what ways is legality constructed by these popular understandings, interpretations and enactments of law"? [p.33]. As these research questions imply, Silbey and Ewick were particularly interested in "popular" conceptions of law, rather than isolating understandings of legality to classical "legal" actors, such as lawyers, judges - the police. From their studies, they generated three legal consciousness narratives. Some of the terms employed are highly problematic and much contested in the associated literature - the idea of "legal consciousness" in particular is controversial - I don't propose to descend into these academic imbroglios in any detail.

Sufficeth to say, Ewick and Silbey discerned a range of attitudes about law from their interviewees, from the idea of law as terrain of conflict, working with the law and manipulating its rules and strictures to realise ends and desires - to individuals standing before the law, experienced and conceived as a timeless, neutral, objective body of determinate standards, requiring only their submission. I'm sure from your own experience, you will be able to recall examples of conversations, which turn to legal subjects - and you find yourself or your companion earnestly saying "that isn't legal". I can still vividly recall overhearing one such earnest discussion in a pub, after Iraq had been invaded. Two old fellows, neither of whom, best I could discern from their talk, had any legal training at all, entertained several minutes of conversation, concluding "... of course it's an illegal war."

At the time, I rather ungenerously chortled at this. Lawyers are often disposed to treat such popular legal commentaries as simply inaccurate or poorly informed, rather than something interesting in their own right (albeit quite uninteresting, as an authoritative opinion on some knotty legal conundrum). Although I've misplaced the reference, a Scottish lawyer recently published an article in a learned journal (off the top of my head, I think it was the Edinburgh Law Review) touching on the online analysis of the prosecution of Tommy Sheridan - and particularly, the gap between popular understandings of the significance of particular aspects of the case and the view of legal professionals. For example, folk who attended closely to the trial will recall that the Advocate Depute narrowed the scope of the final indictment against Sheridan in the final days of proceedings. Many interpreted this as an indication that the Crown case was imperilled, an extraordinary concession in the face of Tommy's remorseless advocacy. Not so, if the final verdict is anything to go by.

I was reminded of all of this by a piece in the Scotland on Sunday this morning, in which Michael Moore's Tory mosca, David Mundell, "warned" the SNP about the risk of a legal challenge to the competence of Holyrood's referendum Bill...

"In an interview with Scotland on Sunday, Mundell said that if the SNP pressed ahead with a form which did not have Westminster support, disgruntled Unionists would probably go to the courts. Such a dispute could involve a Unionist supporter challenging the Scottish Parliament's right to hold the referendum. Lawyers said last night that such a legal challenge would go first to the Scottish courts, but could end up in the Supreme Court in London, whose validity has been attacked by Salmond and SNP ministers in recent weeks over its intervention in the Nat Fraser case. Mundell said: "I think it is essential that we work together to make sure that it is valid and stands up to third-party scrutiny, so there are no process issues and that there are no challenges based on process." He added: "I think it is very important the UK Government is involved in shaping the referendum to make sure we get a valid proper referendum that is free from challenge."

Supporters of independence will be very tempted to write this off as the UK Government flying a kite, indicating louche moves to scupper the referendum by nefarious legal means. However, it is vital that pro-independence and pro-referendum folk realise that Mundell has a point, or at least the ghost of a point. While it isn't necessary for the Scottish Government to consult with Westminster to winnow a legislatively competent referendum Bill - Alex Salmond simply does not have a free hand in framing this legislation. It is no answer to a legal case in the Scots Courts to cry "the Scottish people are sovereign", or even to cite international theorising about inalienable rights to self-determination and their exercise.

We are not assisted in Scotland by journalists who feel free to dispense legal advice (here's looking at your, Mr MacWhirter...) about issues beyond their ken. This is often at its most problematic where politics is concerned.For example, after the Holyrood election, Mr MacWhirter blithely reassured us that holding an independence referendum was within the powers of the Scottish Parliament. All well and good. I agree that there is a case that such a referendum does fall within Holyrood's powers. I agree that it would be outrageous if the institution could not hold such a ballot. However, the autonomous judiciary, interpreting the limited powers of the Scottish Parliament under the Scotland Act 1998, is exceedingly unlikely to be satisfied with the argument that the SNP won the election, ergo their referendum Bill is intra vires. This loose attitude towards law, and the failure to take it seriously, tends to generate eminently predictable "surprises" for the press, where their confident predictions that all is well collapse in the face of juridical interpretations.

The point is that Holyrood's tribunes may feel themselves to be legislatively sovereign, or basically so, able to do whatever they like. They may be scandalised by Court findings that they're powers are circumscribed. However, that does nothing to alleviate the basic legal fact that Holyrood was not "born free" and cannot, in law, simply do as it fancies. Whether or not it is regarded as political legitimate, it is simply loopy to expect judges to abandon their dry work of legal analysis, by clause and section, simply because you have an alternative constitutional vision for the Scottish Parliament. This is not simply a question of the independence referendum. In the UK Supreme Court this week, the Justices heard the appeal of insurers against Holyrood's pleural plaques legislation. As those watching proceedings on the t'internet would have noticed, counsel for the Lord Advocate, Alan Dewar QC, put in an exceedingly ponderous and long-winded performance - and if Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act is held to be intra vires by the UK Supreme Court, despite its retrospective application, it will be despite the potency of Dewar's interminable oral advocacy, rather than because of it.

The case against the pleural plaques legislation was brought by a band of insurers, no doubt venally pursuing their own material interests, working with the law. As Mundell has pointed out, any independence referendum passed by Holyrood could face a similar challenge. In terms of judicial authorities, it is still early days in the interpretation of the Scotland Act 1998. While there may be questions of title and interest to sue (which I won't go into), the basic legal fact is that any punter with money to spend, opposed to a referendum on independence, will be able to solicit the review of any Referendum (Scotland) Act under the Scotland Act. Commentators often suggest that trying to scupper the independence referendum using legal means is likely to outrage public opinion and afford Nationalists advantages when attitudes towards independence are tallied. They imply, as a result of this, that no legal challenge will be lodged. While I suspect they are correct that formal political entities, such as the UK government and Unionist political parties, are unlikely to do so - what of the lone Unionist litigant who has no political reputation to sustain, who is hell-bent only on foiling the perfidious Nationalist plot using judicial means? That a legal challenge would be potentially politically disastrous may trouble him not at all. It is with this character which Nationalists, quite seriously, may have to contend. He is not a fictional spectre raised up by villainous Unionists, but a real possibility, even a likelihood.

This action-happy figure need not even succeed in his case, to cause no end of disruption. The press may entertain notions about canny Alex Salmond, holding the referendum at a time best-laid to suit himself. However, merely consider this. The Scottish Parliament's Damages (Asbestos-related Conditions) (Scotland) Act received royal assent on the 17th of April 2009 - and the final hearing on its legislative competence was heard in the UK Supreme Court only this week. We await their judgment. If time really is of the essence, pro-nationalists ought to be profoundly concerned about the risks of legal review of the independence referendum. We should also take the legislative competence issue far more seriously, rather than pretending that it does not exist, or allowing ourself to be duped by political commentators, moonlighting as barrack-room lawyers. This isn't Mundell flying a kite. This isn't (particularly) Her Majesty's government making mischief. Nor, for that matter, can the potential problem be wished away by fierce invocations of politics, democratic legitimacy, self-determination or what have you. While legal consciousness narratives are interesting, it is only a fool who comes to love his own ignorance, and noisily continues to broadcast it in the face of irrefutable contrary facts.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.